Sven Jacobs (DE)

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The Advocate General to the Court of Justice of the European Union (CJEU) Yves Bot caused a sensation with his unexpected opinion concerning the admissibility of social media fanpages under EU data protection law. According to the opinion of Mr. Bot, the operator of a social media fanpage is “jointly responsible for the processing and collection of personal data together with” the social media operator.

Further, the operator of a fanpage of a social network is deemed to be a controller “with regard to the phase of processing of personal data consisting in the collection of data on the persons visiting this site by this social network with a view to the production of visitor statistics relating to this site.”

The use of WhatsApp without the declaration of consent from every person in the user’s address book directory is deemed to be inadmissible in a recent decision by the family law department of a German lower federal court (AG Bad Hersfeld, 15.05.2017 – F 120/17 EASO).

The court held that the mother of an 11-year-old boy had to ensure and constantly control that all of her son’s phone contacts had given their consent to the transfer of their contact data to WhatsApp.

The German Justice Ministry has introduced a draft law that would impose fines of up to €50 million on social media companies that fail to remove hate speech and other illegal content from their platforms quickly.

The fines would be imposed whenever social media companies do not remove online threats, hate speech, or slanderous fake news. Any obviously illegal content would have to be deleted within 24 hours; reported material that is later determined to be illegal would have to be removed within seven days.

The Regional Court of Hamburg recently applied for the first time the new decision by the Court of Justice of the European Union (CJEU) regarding the liability for hyperlinks and further increased the risks and responsibilities for social media website operators.

The EU Court Decision

The CJEU held in September 2016 that using a hyperlink may constitute an infringement of copyright law, if (a) the linked website to contains infringing content, (b) the hyperlink was provided with the intent to realize profits and (c) the person providing the link did not review the content on the linked website.

The answer depends on who you are: For consumers there is little risk involved. Companies, however, did receive letters by the German Olympic Committee in recent weeks warning them about stealing intellectual property, similar to the letters send by the United States Olympic Committee. In particular Twitter accounts should not reference any Olympic results, share or re-tweet anything from the official Olympic account, or use official hashtags including #Rio2016 or #Team.

Facebook became the latest American technology company to face antitrust hurdles in Europe after the German Federal Cartel Office (Bundeskartellamt), a competition authority, opened an investigation into whether Facebook Inc., USA, Facebook Ireland Limited and Facebook Germany GmbH abused their alleged dominant position in social networking by violating data protection laws. Accordingly, unlike other proceedings the Cartel Office’s investigation targeting Facebook is for the first time based on the potential invalidity of its terms of use pursuant to German data privacy laws.